LAND OF THE FREE: BODILY AUTONOMY AND THE CONSTITUTION
Solena Nehme
Professor Bellia
May 10, 2019
Nehme
I.
INTRODUCTION
It is inherent that under the protections afforded by the Bill of Rights and the
Constitution, each person is free to make choices regarding one’s own body so long as the
conduct does not interfere with the rights of others. Unfortunately, this is not the case, as the
government continuously regulates and criminalizes consensual adult behavior that is essentially
victimless. Such laws restrict individuals from exercising sovereignty over their own bodies and
allow government coercion.1 Moreover, because bodily autonomy- “the control over the borders
and contents of one’s body”- is not a fundamental right, the laws burdening this liberty interest
need only satisfy a rational basis review.2
The time has come to recognize bodily autonomy as a fundamental right. We live in the
land of the free but the United States has the world’s largest incarceration rate. It is in this
context of the freedoms that the following paper proposes that bodily autonomy should be a
constitutional right and any law by the state that seeks to burden the right should be subject to
strict scrutiny.3 The purview of the strict scrutiny should include laws on laws, prostitution, food
and water standards, euthanasia, and capital punishment as they constitute bodily intrusion.4
However, the focus of this synopsis is on the prohibition of drugs such as marijuana because the
ingestion of the drug is a personal choice on what an individual wants over his body and does not
directly affect other people, making it a victimless crime.5 The proposal for bodily autonomy as
a fundamental right is backed by the Constitutional provisions - namely the liberties enshrined
1
Gowri, Ramachandran, Against the right to bodily integrity: Of cyborgs and human rights," 87 Denv. UL Rev.
(2009), p. 1.
2
Winick, Bruce J. "On autonomy: Legal and psychological perspectives." 37 Vill. L. Rev. (1992), p. 1705.
3
Stephen A. Siegel, The Origin of the Compelling State Interest Test and Strict Scrutiny, 48, no. 4 AMERICAN
JOURNAL of LEGAL HISTORY (2006), p. 355.
4
Caitlin E. Borgmann, Abortion, the Undue Burden Standard, and the Evisceration of Women’s Privacy, 16 WM. &
MARY J. WOMEN & L. (2010), p. 291
5
Marihuana Tax Act of 1937
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in the Fourteenth Amendment.6 Secondly, Court decisions on family planning and freedom of
speech should be considered analogous to bodily autonomy because they center on “the control
over the borders and contents of one’s body.”
II. BACKGROUND
1. Precedent Governing Bodily Autonomy
The doctrine of bodily autonomy relates to the right to life as provided in the Bill of
Rights in the U.S Constitution. This is further implied by section 1 of the 14th Amendment
which states that a typical state should follow due process in matters involving depriving an
individual the right to liberty, life, or property.7 However, the “due process clause of the
Fourteenth Amendment protects an area of personal liberty not yet wholly delimited.”8 So despite
the Constitutional stipulations, bodily autonomy has not been recognized as a fundamental right
by the Supreme Court. Noteworthy, the principle that each of us decides what happens to his or
her own bodies is rooted in United States history as it was recounted in Washington v.
Glucksberg.9 At common law, every individual of sound mind had “the right to determine what
shall be done with his own body.”10 In the renowned 1891 Supreme Court case, Union Pacific
Railway Co. v. Botsford, it was held that “No right is held more sacred, or is more carefully
guarded, by the common law, than the right of every individual to the possession and control of
his own person, free from all restraint and interference of others, unless by clear and
unquestionable authority of law.”11 In addition, an individual has the right, “generally, to enjoy
U.S. CONST. amend. XIV, § 1
Id.
8
Perez v. Sharp, 198 P.2d 17 (Cal. 1948).
9
Washington v. Glucksberg, 521 U.S. 702, 710–19 (1997).
10
Union Pacific Ry. Co. v. Botsford, 141 U.S. 250, 251 (1891).
11
Id.
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those privileges long recognized at common law as essential to the orderly pursuit of happiness
by free men.”12
The rulings precedent that an individual has a right to his body and there should be no
intrusion by others. In the ruling it was further underscored that the state should not restrict the
liberty of an individual unless the conduct of the individual is likely to cause injury to other
persons.13 The implication of such assertion of no state intrusion is that an individual should have
express rights to their body provided that the right does not infringe on other people’s wellbeing.
In the confines of common law, the 14th Amendment section 1 assertions and the ruling of In
Union Pacific Railway Co. v. Botsford, it points out that the right to bodily autonomy is detached
from moral principles that may curtail its implementation and hence the ‘expressivity’ of the
right. However, despite the landmark ruling, the courts have not fully recognized the right to
bodily autonomy in regard to use of drugs.14
For instance, a case precedent relates to David Lanier,15 A Tennessee State Chancery
Court Judge, who was convicted on felony and misdemeanor accounts of depriving a person of
constitutional rights and a violation of 18 U.S.C. §241 due to several incidents of forcible oral
rape and sexual assault that happened between 1989 and 1991.16 The trial court told the jury that
the conviction was due to unauthorized physical intrusion which was against the victim’s
constitutional right to bodily integrity. The case was appealed in which the appeal court rejected
the substantive due process claim to bodily integrity.17 On writ of certiorari, the Supreme Court
though ruled that the Court of Appeals used the wrong standard in the determination of the “fair
12
Perez supra note 8 (quoting Meyer v. Nebraska, 262 U.S. 390, 399 (1923)).
United States v. Koon, 34 F.3d 1416 (1994).
14
Union Pacific Ry. Co. v. Botsford, 141 U.S. 250, 251 (1891).
15
United States v. Lanier, 520 U.S. 259 (1997).
16
18 U.S.C. § 241.
17
Weiler, Stephanie, Bodily Integrity: A Substantive Due Process Right to Be Free from Rape by Public Officials,
vol. 34: no. 2 CALIFORNIA WESTERN LAW REVIEW (1998), p. 19.
13
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waning requirement” of 18 U.S.C. §242.18 However, the Supreme Court did not address the
substantive due process claim to bodily integrity.19
The failure by the Supreme Court to examine the issue of the bodily autonomy within the
Fourteenth Amendment for the case points out to a major issue that for a long time has not been
explicitly addressed and still limits the exercise of the freedom in regard to sexual assault and
drug use.20 Case in point, precedent cases show selective application of the due process right to
bodily integrity in which the Supreme Court has upheld some cases in the confines of the right
being enshrined in the Fourteenth Amendment of the Constitution.21 For instance, the Supreme
Court has consistently observed that the right to bodily integrity entitles individuals access to end
of life decisions without intrusion of government and families access to birth control without the
involvement of the government.22 It is in line with the Court determinations that bodily
autonomy should be considered a fundamental human right.23
2. Identifying Fundamental Rights
The U.S. is generally perceived as a land of freedom. The 14th Amendment guarantees
rights and immunity of citizens and due process and equal protection from bodily intrusion by
the state.24 According to Section 1 of the 14th Amendment, “no State shall make or enforce any
law which shall abridge the privileges or immunities of citizens of the United States, nor shall
any State deprive any person right to life, liberty, or property, without due process of law; nor
deny any person within its jurisdiction the equal protection of the law.”25 Such a designation is
18 U.S.C. §242.
Steven J. Eagle, Substantive Due Process and Regulatory Takings: A Reappraisal, 51 ALA. L. REV. 977 (2000),
p. 1007.
20
Id. at 1005.
21
Planned Parenthood of Southeastern PA v. Casey, 505 U.S. 833 (1992)
22
Cruzan v. Director, Missouri Dep't of Health, 497 U.S. 261, 277-78 (1990)
23
Griswold v. Connecticut, 381 U.S. 479 (1965)
24
U.S. CONST. amend. XIV, § 1 supra note 6
25
Id.
18
19
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one of the key foundations of fundamental rights and therefore liberties. For instance, the
concept of liberty of contract that was advanced by Justices Bradley and Field translated into the
doctrine status in a landmark case, Allgeyer v. Louisiana.26 The doctrine has been applied in
subsequent cases as a restraint on state and federal power in intrusion. The liberty usually
includes personal and rights and privileges.27 Nevertheless, despite the doctrine, the Court is
chary of expanding the concept of bodily autonomy to a fundamental right.
Under the right to liberty, the right to bodily autonomy exists just as it is in regards to
freedom of speech, abortion and equality. As such, under the liberty of contract that provides for
state power restraint, it implies that an individual has a right to determine what to access, case in
point, the right to use drugs and the right to ingest the drugs safely.28 However, these rights have
not been guaranteed and are regulated by the government. Noteworthy, the liberty as provided
for in the 14th Amendment implies restraint of the state and federal power. Unfortunately, the
Court has avoided qualifying it as an absolute right which has meant that it is not immune to
reasonable regulation and requirements of the state.
3. Constitutional Jurisprudence Establishing a Bodily Autonomy Presumption
One of the key purposes of the 14th Amendment is the general right to privacy which has
been described by scholars as “the right to be let alone—the most comprehensive of rights and
the right most valued by civilized men.”29 The assertion has been supported by Court that has
observed that the personal privacy and dignity are protected against intrusion based on the 14th
Amendment which underscores bodily autonomy as a critical liberty. This assertion of privacy is
26
Allgeyer v. Louisiana, 165 U.S. 578 (1897)
Singer, Joseph William. "The legal rights debate in analytical jurisprudence from Bentham to Hohfeld." Wis. L. Rev.
(1982), p. 975.
28
Schulhofer, Stephen J. "Taking sexual autonomy seriously: Rape law and beyond." 11.1 Law and Philosophy
(1992), pp. 35-94.
29
Olmstead v. United States, 277 U.S. 438, 478 (1928) (Brandeis, J., dissenting).
27
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underscored by Justice O’Connor in the Cruzan case where “physical freedom and selfdetermination” underpinned the common conception of liberty.30 Noteworthy, dignity and
personal privacy are integral ad considered basic to the reality of a free society.31
Based on the provision and assertions, the bodily autonomy is an important right which implies
freedom to choice in regard to one’s body. The basis of the principle of bodily autonomy is
ensuring one’s domination over the body and restraint of external coercion. As per the Bill of
Rights and specifically the liberty which is conferred on all the U.S. citizens by the constitution,
“an individual is free to do whatever he pleases provided that it does not infringe on the rights of
the others.”32 The government, thus, is legally barred by the constitution from ceding power to
intrude on matters that relate to an individual’s body. In the confines, the medical law provides
autonomy in which a patient or client’s autonomy is cherished and respected in the care
process.33 In the context of liberty of contract, freedom is guaranteed and it is not a privilege but
a provision in the constitution.34 Sadly, the right has been applied selectively by courts as it has
been pronounced in matters relating to abortion, and family planning but the same Court has
turned a blind eye in regard to matters that relate to the ingestion of drugs.35
Just as the Supreme Court has consistently pronounced a bodily autonomy right in cases
of family planning and abortion, similarly, there should be a legal realization that the right
should not be applied selectively.36 It should be holistically interpreted to enshrine bodily
Cruzan v. Dir., Mo. Dep’t of Health, 497 U.S. 261, 278 (1990)
Id.
32
U.S. CONST. amend. XIV, § 1 supra note 6.
33
Jessie Hill, The Constitutional Right to Make Medical Treatment Decisions: A Tale of Two Doctrines, 86 TEX. L.
REV. (2007), p. 277.
34
U.S. CONST. amend. XIV, § 1 supra note 6.
35
Seth F. Kreimer, Rejecting “Uncontrolled Authority Over the Body”: The Decencies of Civilized Conduct, the
Past and the Future of Unenumerated Rights, 9 U. PA. J. CONST. L. (2007), p. 423.
36
Rubin, Eva R. "Abortion politics and the courts: Roe v. Wade and its aftermath." (1982).
30
31
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autonomy in the ingestion of drugs without victimization. The focus should be to empower all
persons to be responsible for their bodies. In fact, the establishment of a fundamental bodily
autonomy right for adults will not cause harm for others, nor will such a recognition infringe on
others’ rights. Therefore the argument for this proposal is realization of the constitutional
jurisprudence in which the following aspects should be upheld.
i.
Each individual should be legally empowered to exercise sovereignty over their bodies:
The implication of the empowerment is that in regard to matters that concern bodily
autonomy such as ingesting drugs, liberty should be accorded to avoid the mass
criminalization of drug use because it contradicts the notion of liberty.
ii.
It should be recognized that bodily autonomy is a historical right that dates back to the
1800s in the U.S. The Bill of Rights provides for various freedoms and the liberty in
which bodily autonomy fits is reinforced by the 14th Amendment.37 Notably, the idea
that each individual should decide what happens to his or her bodies has a long history in
the United States, with language dating back to at least 1891, which suggests that it is a
right that has existed for centuries but has not been enjoyed, noteworthy:
a. Each individual’s bodily autonomy is a principle so “deeply rooted in this
Nation’s history and tradition” that it warrants constitutional protection as a
fundamental right. Not only is there a strong precedent for establishing bodily
autonomy as a fundamental right but doing so is necessary for the administration
of justice. People have a right to do what they wish with their bodies without
government intervention unless such conduct puts other people at risk of harm.
37
U.S. CONST. amend. XIV, § 1 supra note 6.
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b. Bodily autonomy is a fundamental right under the Fourteenth Amendment.
Therefore, laws that regulate private conduct that causes no harm to third parties
are unconstitutional. For instance the criminalization of victimless crimes is
contrary to the liberty notion.
c. As it is provided under the Fourteenth Amendment that all laws that regulate
private conduct violate the fundamental right of bodily autonomy under the
Fourteenth Amendment, the Supreme Court should also pronounce itself by
recognizing a fundamental right to bodily autonomy under the Fourteenth
Amendment and reconsider the federal government prohibition of controlled
substances due to the evident failure to meet the procedure set for strict scrutiny.
i. Strict Scrutiny and Fundamental Rights
The 14th Amendment restraints states from forbidding any person the right to liberty
without following the due process of law. Similarly, in interpretation of the law and the liberties
provided under the 14th Amendment, the Supreme Court has consistently recognized the right of
bodily integrity as a liberty.38 However, in regards to bodily autonomy, the Supreme Court has
failed to expand the liberty to one of bodily autonomy due to its improper formulations of
constitutional rights. As emphasized by Justice Sanders in his dissenting opinion in Seeley v.
State, the majority asked the wrong constitutional question. He explains, “While the 14th
Amendment simply references ‘liberty,’ the question posed by the majority is whether there is a
‘fundamental interest’ to smoke marijuana. I disagree with this formulation because the
constitution speaks of principles, not specifics. Freedom from needless suffering; the right to
individual autonomy… and freedom from arbitrary, privacy-invading restraints are the principles
38
Id.
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applicable here.”39 Thus, the Supreme Court has improperly followed legal guidelines and, as a
result, has denied Americans the right to bodily autonomy. A scrutiny of the contract of liberty
and the freedoms enshrined in the Bill of Rights points out to the fact that bodily autonomy is a
right that was enshrined in the Constitution by the framers of the rights. Therefore, bodily
autonomy must be formally recognized as a fundamental right, subjecting laws burdening this
right- such as the regulation of controlled substances- to strict scrutiny.40 The government is
required to demonstrate a legitimate interest in the enacting of bodily-autonomy-restricting laws
or statutes.
Strict scrutiny is not applied when state and federal governments enact laws that restrict
application of bodily harm. The standards of strict scrutiny are applied in two contexts. First is
when a constitutional right enshrined in the Bill of Rights is infringed by a state or any other
entity. Also, it is applied when a fundamental right which is protected by the liberty clause or
Due Process Clause in line with the 14th Amendment is contravened. The only exception to the
strict scrutiny standard is parental right.
For a law to pass strict scrutiny it is supposed to satisfy various tests. The first test is that
it is supposed to be justified by an interest of the government which is compelling. However, the
determination of whether an interest is compelling has not been defined by the courts. Some of
the compelling interests are national security and laws that are meant to preserve the lives of
many people without violation of the constitutional provisions. The second test is that the
regulation or the policy being passed is supposed to be tailored to achieve a given interest or goal
which is narrowed. The third test under strict scrutiny is that the law must be the “least restrictive
39
40
Seeley v. State, 940 P.2d 604 (1997)
Stephen A. Siegel, The Origin of the Compelling State Interest Test and Strict Scrutiny, 48, no. 4 AMERICAN
JOURNAL of LEGAL HISTORY (2006), p. 402.
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means for achieving that interest: there must not be a less restrictive way to effectively achieve
the compelling government interest.”41
Under the 14th Amendment, bodily autonomy is burdened by laws that prohibit use of
drugs such as marijuana. Considering the court determination in cases that relate to bodily
autonomy and constitutional provisions of the right to speech, it can be legally argued that bodily
autonomy is analogous to such fundamental rights, in that the Court has established a
presumption in the favor of adult use of marijuana in the home. In a snip view of the case of
marijuana prohibition through the various regulations, it is thus a violation of ‘justice as
regularity.’42 Secondly, the prohibition of marijuana ought to have been subject to strict scrutiny.
Thirdly, it is important to underscore that bodily autonomy is analogous to the other fundamental
rights and freedoms that have been recognized by the Court such as the freedom of religion and
free speech. An attempt to regulate it calls for strict scrutiny because it burdens suspect
classification or a fundamental right. It can thus be deduced that bodily autonomy in regard to
ingestion of drugs constitutionally qualifies as a fundamental right and should be added to the
growing list which have been recognized over time such as voting, travel, privacy and access to
judicial system.43 The prohibition of Marijuana by classifying it as a schedule 1 narcotic was a
violation of the fundamental right to bodily autonomy because the use of the drug is a victimless
crime and does not satisfy the test of protecting the citizens. Marijuana which is taken in the
confines of home or for a person who is not engaging in public activities such as the operation of
machinery or driving does not pose a direct risk of harm to other people.
ii. Supreme Court Decisions Applying the Strict Scrutiny Standard
41
Id.
Rawls, A Theory of Justice. (1971)
43
Siegel, supra note 40.
42
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The Supreme Court’s decisions in most case laws that relate to the fundamental right of
bodily autonomy have been characterized by the application of rudimentary balancing tests
instead of the application of the strict scrutiny standard.44 As a result, the Court’s determinations
in such instances have suffered from infirmities. First infirmity is failure to consider the
nonphysical or psychological harms caused by bodily intrusions considering the implications on
the dignity and autonomy at the expense of state laws that should have been subject to strict
scrutiny. Also, the Court’s decision has been characterized by failure to appreciate the
invasiveness of the bodily intrusions and the implications on personal dignity, happiness and
even religious freedoms which are protected as fundamental rights by 14th Amendment liberties.
The decisions are differential to state power which in most cases the government is overzealous
in intruding bodily privacy without proving a clear basis as to why. For example, Justice
Brennan, with whom Justice Marshall and Justice Blackmun joined dissenting in the seminal
case Emp't Div., Dep't of Human Res. v. Smith45 involved the religious use of Peyote against
Oregon's state interest. Justice Brennan opined “this Court has expressed no intention to depart
from the longstanding rule that, in strictly scrutinizing state-imposed burdens on fundamental
rights, courts may not assert on a State's behalf interests that the State does not have.
Accordingly, I must assume that the Court has tacitly left the Oregon Supreme Court the option
to dispose of these cases by simply reiterating its initial opinion and appending, "And we really
mean it," or words to that effect.46 Here, Justice Brennan made the argument that a state shall not
have the power to impose burdens on personal rights of individuals where the state itself does not
have a credible interest in such burden. Thus, the fact that thirty-three states and the District of
44
Gerstmann, Evan, and Christopher Shortell, The Many Faces of Strict Scrutiny: How the Supreme Court Changes
the Rules in Race Cases, 72 U. Pitt. L. Rev. 72 (2010), p. 1.
45
Empt. Div. v. Smith, 485 U.S. 660 (1988).
46
Id. at 1455.
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Columbia currently have passed laws broadly legalizing marijuana in some form, is de facto
evidence that the use of such drugs can be plainly described as not dangerous and negates the
purview of the Bill of Rights and further the 14th Amendment mandate that an individual shall
have the privacy to do what she pleases with her own body provided that it does not infringe on
the rights of the others nor is a threat to public safety. Therefore, the fact that thirty-three states
have legalized in some form, is unequivocal proof that the use of marijuana is not one in which
there could possibly be a compelling state interest because if so, other states would simply not
have been able to legalize. Moreover, the fact that states are continuously decriminalizing the use
of marijuana and even providing for the mass sale of such, shows that marijuana could be
lawfully and constitutionally upheld. Accordingly, states that have not moved for legalization as time continues to pass, are essentially running out of reasons why and stapling the same weak
reasoning that Justice Brennan criticized - “because we really mean it” or on behalf of the States
interest that the State does not necessarily have.
Contrastingly, the issue bodily autonomy in the U.S can be related to the rational interest
versus compelling reasons. This meant that compelling reasons should give way to avoidance of
strict scrutiny that in turn led to rules and regulations that prohibited ingestion of drugs such as
marijuana. The failure to recognize the fundamental right to bodily autonomy has opened the
way for drug abuse. To emphasize, the right to make the choice whether to use drugs or not is an
individual’s autonomy that does not harm other persons.
In the history of the U.S. the common law right against bodily intrusion has been
recognized and it is upheld as of the crucial rights. Surprisingly, bodily autonomy is not
considered as a fundamental right. The government seems to enjoy a bodily intrusion based on
various legislations and regulations that criminalize the use of drugs. The Supreme Court has not
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addressed the government-imposed bodily intrusion and has circumvented the issue with no
overarching theory to explain legal backing of differentiating bodily integrity and bodily
autonomy.47 Instead, through different approaches, it has analytically demoted the right by
creation of doctrinal barriers. For instance, it has not consistently treated the right as a unitary
and substantive due process right. Secondly, in regard to personal autonomy in regard to self’s
body, the Supreme Court has not provided sufficient weight to psychological or nonphysical
harms of the forced intrusions and hence provided the government with justification for bodily
intrusion. The failure to recognize it as a fundamental right enshrined in the constitution has also
given the states and federal governments excessive power to infringe on the right by enacting
laws, regulations and policies that contravene the constitutional liberties without being subjected
to strict scrutiny.
The Supreme Court has interpreted the constitution in regard to bodily autonomy in some
instances to protect the people against intrusion by the state. However, the problem starts when
the Court consistently compartmentalizes the bodily intrusion which allows it to focus narrowly
on the type of intrusion that has been subjected to a person or the reasons the government is
intruding. The implication can be equated to selectivity in which the Court does not appreciate
intrusions like the forced drawing of blood. Denying a person the right to use drugs touch on the
personal body just as it does in cases of abortion and family planning.
In the Union Pac. Ry. Co. v. Botsford case law, the Court followed substantive due
process as a basis of protection against a government-bodily imposed intrusion but it failed to
acknowledge that it was a fundamental right.48 In the case law, the Court emphasized that bodily
intrusion was indignity and invasiveness regardless of the implications of the intrusions. The
47
48
Kreimer, supra note 35.
Botsford, supra note 10.
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Court noted that right to be free from physical interference was “a right of complete immunity.”49
The Court further noted the permission for certain physical intrusions in the common law
contexts were foreign to the U.S because they were never imported.
III. THE FEDERAL PROHIBITION OF CONTROLLED SUBSTANCES
1. The History of Federal Drug Policy and the War on Drugs
Many of the most popular illegal drugs have been historically used for recreational and
medical purposes since the inception of the United States. The use has continually given rise to
heated debates seeking to explore why different government levels in the U.S. are grouping some
drugs legal while at the same time branding others illegal.50 Many people today are focusing on
exploring whether the categorization is based on some scientific measurement of the risks
associated with those drugs or on what kind of people are associated with the drug.51 As such,
several people have expressed divergent opinions and reactions towards the Federal law
campaign ranging from total support to assertions that the war on drugs has a political motive or
racist objective behind it. The use of drugs, which have been branded illegal, was recorded in
the late nineteenth century with most drugs, chiefly opium, surfacing after the American Civil
War. Cocaine is also observed to be popular in the late nineteenth century with most of it being
used in medicinal drinks and other remedies. At the beginning of the twentieth century, America
witnessed a massive unregulated drug market with most uses in the medical industry. However,
most of the drugs were being circulated for use without proper prescription and consumer
knowledge. The use of drugs such as cocaine, opium, marijuana, and other drugs classified as
49
Id. at 251.
Braun, M. Miles, et al. "Emergence of orphan drugs in the United States: a quantitative assessment of the first 25
years." 9.7 Nature Reviews Drug Discovery (2010), p. 519.
51
Perry, Mark J. The shocking story behind Richard Nixon’s ‘War on Drugs’ that targeted blacks and anti-war
activists (2018).
50
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illegal had reached an epidemic proportion hence leading to general societal concerns by the
federal government. Therefore, the twentieth century saw most state governments embark on
prohibiting the importation and the usage of the illegal drugs in their respective territories.52 The
first war on illegal drugs was recorded on the late 1870s with the directive to burn opium trading
among Chinese immigrants while the first directive towards the use of cocaine was anti-cocaine
law towards blacks living in the South.53 Furthermore, there was the establishment of laws
prohibiting the use of marijuana directed towards the Mexican-Americans and Mexican
immigrants in the Southwest and Midwest. The medical industry was not spared with the
passing of the laws that required the medical field to label their medicines and drugs such as
cocaine properly. The opium drug was hardly hit since it was not seen as a simple option for a
prescription. These efforts laid a foundation for the most restrictive and impactful legislation that
was introduced through the passing of the Harrison Act by Congress in 1914. The objective of
the act was to tax and regulate the production, the distribution, and the importation of the drugs
including, but not limited to cocaine, morphine, heroin, and marijuana. The bill was the first
policy by the federal government that was aggressively applied to see many medical practitioners
that did prescribe the burned drugs to addicts face prosecution and harsh punishments. A good
number of physicians amounting to approximately 5,000 were convicted, fined, or sentenced
with the act mainly targeting those in the pharmaceutical industry. The year 1937 saw the
creation of the Marihuana Tax Act54 which provided a relief to marijuana users. Nevertheless, it
is also imperative to acknowledge the severe consequences it had on drug users as well as the
hefty fines on the producers if cases of tax evasion were reported. This legal strategy was
Stanford.edu. “The United States War on Drugs”
Sacco, Lisa N. Drug Enforcement in the United States: History, Policy, and Trends (2014).
54
Marihuana Tax Act supra note 5.
52
53
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perceived as a target to Mexican immigrants in the U.S. and helped to raise some prestige of the
Federal Bureau of Investigation (FBI) in fighting the illegal drug menace. Since marijuana was a
Mexican word for cannabis, many people tended to regard the Marijuana Bill as an anti-Mexican
rhetoric hence receiving immense resistance.
The successive modern war on drugs began in the 1960s when drugs became a tool for
youthful rebellion, social mayhem, and political opposition. Given the social vices associated
with drug abuse, the government had to intervene with a view of ascertaining the health and
safety of drug users. The modern war on drugs is further associated with the year 1971 when
President Richard Nixon ascended to power and introduced drug bills that are considered to have
failed, are costly, and inhumane although some continue to exist up to today.55 President Nixon
made the war on drugs official while stating the fight against drugs as a public number one
problem in his speech. Failing to integrate the input of planners in his initiative, President Nixon
increased government funding for the fight against drugs in drug agencies. This move by the
president was further complicated by the imposition of severe actions such as mandatory prison
sentences for crimes related to drugs. Furthermore, Nixon’s government created specific
agencies such as the Special Action Office for Drug Abuse Prevention followed by the 1973
creation of the Drug Enforcement Administration (DEA) that had a sole responsibility to fight
the widespread drug problem in America. President Nixon’s reign saw massive funding for
federal agencies that fight against drug smuggling with the most crackdowns happening at the
America-Mexico border. The 1970s also saw a reduction in the fight against drugs with most
states legalizing possession of marijuana. The most emerging drug campaigns targeted the wellbeing of children. In the twenty-first century, the war on drugs has significantly reduced with
55
Drug Policy Alliance. A Brief History of the Drug War (2019).
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most people and policymakers having a feeling that the war has been ineffective and has led to
increased racial divisions in America. Currently, there is new development where most states are
legalizing the use of marijuana as a recreational drug. Technically, the war is still on but with
reduced efforts from enforcement agencies in the past years.56
2. Harms Exacted by Prohibition
It was established that prohibiting the use of recreational drugs either for medicinal or
leisure purposes has a lot of negative consequences as compared to the excellent outcomes that
were the main objectives.57 What is currently seen in the aftermath of the historic war on drugs is
contrary to what the policymakers had in mind during the legislation process such as the concern
for societal morality due to reduced crime and violence. As a result, the war on drugs has
culminated into what one of the common American evangelists predicted- that slums would
remain a memory as prisons will change to factories while jails to storehouses of drugs.58
Therefore, prohibition failed to reduce the use of illegal drugs but instead led to more societal,
cultural, and economic problems.
i. Disparate Impact
The probation has led to an increase in organized crimes and the formation of criminal
groups since the drug business had become a lucrative business venture. The price of drugs
increased as well as underground demand of the drug supply which in turn led to the formation
of wealthy criminal gangs. The outcome of all these is a rapid increase in the levels of crime and
gang violence that saw many people lose their lives because of territorial and market control
wars. Also, there was an increased glorification of the gangster lifestyle and admiration of major
56
Stanford.edu supra note 52.
Barnet, Randy E. The Harmful Side Effects of Drug Prohibition (2009).
58
Friedman, Milton. Prohibition and Drugs (1972).
57
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criminals which led to gangsters becoming stars and enhancement of immorality in the society.
To facilitate protection from government agencies and to conduct illegal business without
interruption, criminal groups would bribe state officials leading to increased corruption
especially among law enforcement officers.59 The prohibition also led to the discovery of more
potent drugs which had intoxicating chemicals whereby slight overdose led to deaths. This also
saw an increase in social problems such as the increased transmission of diseases like HIV/AIDS
caused by the sharing of syringes among drug users.
In addition, there was an increase in the illegal use of prohibited drugs leading to issues
such as overburdening of the justice system. As the prohibition laws were implemented, the
courts witnessed an increase in the number of cases as well as overcrowding of prisons which
directly overburdened the ordinary taxpayers. Colossal amounts of dollars were spent on
expanding law enforcement agencies as well as on the maintenance of prisons. For instance,
during President Nixon’s period in the 1970s, Americans witnessed an influx of drug
enforcement agencies which translated into an increase in the budgetary allocation hence
overburdening taxpayers. The taxpayers were also burdened by expectations to meet the cost of
building and maintaining more prisons. Furthermore, the amount of money an individual would
spend in the justice system such as with hiring lawyers and with paying fines proved to be a
hefty burden. The prohibition has also led to an increase in violations of human rights such as the
right to privacy when federal agencies wiretap communication or confiscation of the property
before a drug suspect is proven guilty.60
ii. Discrimination of Drug Users Diminishes Access to Healthcare for Those
with Addiction
59
60
Beckett, Katherine & Steve Herbert. THE CONSEQUENCES AND COSTS OF MARIJUANA PROHIBITION.
Bennis v. Michigan, 516 U.S. 442 (1996).
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Individuals termed as drug addicts have made up the majority of casualties in the
American war against illegal drugs.61 They have been criminalized and labeled for several years
and have been pushed to the peripheral of society. They have witnessed harassment,
imprisonment, and some even tortured through denial of essential social services.62 These vices
have been going on while billions are spent to spill blood in the streets and take to jail millions of
people in the name of fighting the war against drugs. The result is widespread discrimination,
stigmatization, violence, and poor health status due to denied access to quality healthcare
services. The overall objective of prohibition legislation was to criminalize the use of illegal
drugs, but stakeholders forgot the implication in society for addicts. Therefore, besides
criminalizing possession of unlawful drugs, the motive led to an increase in the stigmatization of
drug addicts in the community. The system approach acted as an obstacle for addicts to access
healthcare services instead of the primary legal consequences relating to imprisonment and hefty
fines.
Furthermore, discrimination of drug addicts has severe consequences associated with
physical and mental health. As such, the treatment of drug users in the aftermath of drug
legislation is a significant obstacle to accessing healthcare services.63 There is an urgent need to
address the issues of stigmatization of addicts resulting from legislation of drug use. Stigma
resulting from discrimination is a long-lasting mark attached to public humiliation and has severe
consequences on the level of interaction of the stigmatized individuals.64 Society attaches some
61
Lloyd, Charlie. The stigmatization of problem drug users: A narrative literature review. 20.2 Drugs: education,
prevention and policy (2013), pp. 85-95.
62
MacCoun, Robert J. "Drugs and the law: a psychological analysis of drug prohibition." 113.3 Psychological
bulletin (1993), p. 497.
63
. Mossinghoff, Gerald J. "Overview of the Hatch-Waxman Act and its impact on the drug development process."
54 Food & Drug L.J. (1999), p. 187.
64
Himmelstein, Jerome L. "Drug politics theory: Analysis and critique." 8.1 Journal of drug issues (1978), p. 37-52.
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perceived aspects that include alleged threats posed by the addicted individual and the extent to
which they are being blamed for the discrimination. Discriminatory attitudes directed towards
drug addicts are common scenarios among the non-professional personnel and the general
public. Also, the effect of the public attitudes shown towards drug addicts is a major barrier to
the road to recovery from drug abuse.
The level of discrimination can be seen in the system approach to health problems in the
American society. Traditionally, drug abuse and subsequent addiction have been treated
separately from issues such as mental health and general healthcare services. The problem does
not arise now because previously, in the early centuries, any matters relating to drug addiction
were not treated or attended to in mainstream hospital facilities by psychiatric or healthcare
providers. Drug abuse was viewed more as a social problem and was handled through systems
such as criminal justice and forced commitment in psychiatric clinics. It is only after the return
of veterans from the Vietnam War that the federal government realized the need for increased
integration of drug addicts’ prevention and treatment services in mainstream healthcare services.
Despite the increased drive for integration, lack of proper healthcare providers trained to handle
drug addicts and general public perception on drug addicts act as hindrances to access to
healthcare services among drug addicts.65
3. Implications of Repealing Drug Prohibition
i. Positives in Repealing Prohibition and Enacting Regulation
The economic effects attached to repealing drug prohibition by enacting regulations in a
bid to legalize the use of some drugs such as marijuana for recreational purposes has already
65
Kulesza, M., et al. Stigma among individuals with substance use disorders: Does it predict substance use, and does
it diminish with treatment? 3.1 Journal of addictive behaviors, therapy & rehabilitation (2014).
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seen economic benefits.66 This is implied by the commonly cited examples of Colorado, Nevada,
Washington, or California states which decided to legalize the use of marijuana as a recreational
drug. According to research done on Pueblo County in Colorado State, legalizing marijuana had
a pronounced positive effect on the economy of the county.67 Furthermore, the analysis indicated
that marijuana is often regulated and taxed hence making a contribution of approximately $58
million for the local economy. Despite the costs associated with the implementation, legalization,
law enforcement department, and social services provision, the county spent $23 million but
remained with $35 million as profit. Therefore, the strategy served as an efficient initiative to the
states by generating additional revenues from licensing fees besides taxation. An increasing body
of research has shown that nine out of ten people arrested because of marijuana-related offenses
are due to possession and not distribution. Therefore, the suspension of the prohibition law will
increase productivity as fewer people will be arrested and will take part in economic activities.
Also, there are budgetary savings because of the cost associated with the prosecution of
individuals made from drug-related activities. In addition, a growth of friendly business ventures
and the establishment of new investment opportunities such as the creation of legitimate drug
companies which conduct research and develop medicinal cannabis and related products have
been recorded.68 Given these developments, there will be the creation of more jobs as more
people engage in the distribution and manufacturing sectors and some of marijuana companies
become listed on the stock exchange market.
ii. Negatives in Repealing Prohibition and Enacting Regulation
66
Todd, Tamar. The Benefits of Marijuana Legalization and Regulation. 23 Berkeley J. Crim. L. (2018).
Zhang, Mona. Legal Marijuana Is A Boon To The Economy, Finds Study. Forbes (2018).
68
Tamar supra note 66
67
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Experts fear that repealing the prohibition on illegal drugs and making it legal to possess
them will lead to an upsurge in usage.69 The legalization has taken effect with prior knowledge
on the lack of sufficient evidence to support the therapeutic effects of drugs such as marijuana,
but there exist evidence of unfavorable side effects attached to the illegal use of drugs. The
suspension of the policy prohibiting the use of illicit drugs is a case of societal concern with
various impacts on global drug networks, internal systems of criminal justice, state and federal
government tax revenue, and the general public health.70 With a vast pool of physicians to guide
the legislatures, the topic on the severe health problems attached to illegal drugs such as
marijuana has always been missing the legalization of marijuana for leisure purposes. Most
research studies show that the health effects are more pronounced in teenagers. People that use
marijuana, especially the youth, might have cognitive-related problems such as schizophrenia
and psychoses.71 Kids that use marijuana regularly have lower intelligence quotient (I.Q.) levels
than those who do not.72 Furthermore, a good number of experts consider cannabis as a gateway
to more lethal drugs.73 However, as a counterargument, by repealing prohibition, the government
can enact regulations on quality and potency of cannabis, eradicating the demand for marijuana
on the black market, therefore reducing cannabis access to minors. Therefore, the repealing of
prohibition may pose a neutral if not positive impact on societal welfare.
iii. Recognizing a Fundamental Right to Bodily Autonomy Will Reinforce
Other Rights
69
Wilkinson, Samuel T. More Reasons States Should Not Legalize Marijuana: Medical and Recreational Marijuana:
Commentary and Review of the Literature. 110 Mo. Med. J. (2013), pp. 524–528.
70
Condron, Patrick. Social Impact and Effects of Marijuana (2019).
71
Nicosia, Chloe. The Legalization of Marijuana and the Negative Impact (2019).
72
Id.
73
Id.
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According to the United Nations High Commissioner for Human Rights (UNHCR),
recognizing the right to bodily autonomy or personal autonomy serves as the foundation of
human rights. In the twentieth century, after World War II, the UNHCR adopted a document on
the Universal Declaration of Human Rights (UDHR) in reaction to the failure of the League of
Nations and the atrocities of World War II. The UDHR was meant to serve as a guide for social
transition and later became an achievement for all the nations. Freedom and human rights have
taken different dimensions depending on the school of thought and culture. They are not just
doctrines expressed in documents, but also depend on the attitude towards other people and
beliefs about other people. Therefore, it is up to autonomy or personal discretion and appropriate
public behaviors that determine how far an individual can pursue happiness. Although the word
has taken different meanings, autonomy means a person’s right to be an expert on their interests
depending on their beliefs and values.74 If authority was to interfere in cases to do with personal
morality or bodily autonomy, and then this authority could treat values of some individuals as
superior to others. Despite there being questions about how individuals should exercise personal
freedom without affecting other people’s autonomy, the provision of basic rights are
fundamental in developing and exercising personal autonomy.
Human dignity is also crucial in the development of human rights hence obstructing
individuals from accessing or exercising their own will is a violation of fundamental human
rights. Human dignity is found in freedom and privacy which should be given through various
state laws. As such, autonomy is derived from various privileges attached to rights to privacy
which are observed to underscore human dignity. The relationship between personal autonomy
and other human rights cannot be separated because they show equality of all the individuals and
74
Herring, Jonathan & Jesse Wall. THE NATURE AND SIGNIFICANCE OF THE RIGHT TO BODILY
INTEGRITY. 76 Cambridge L.J. (2017), pp. 566-588.
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the ability to pursue their interests divergent from state-based regulations. Autonomy requires
recognition of the individual as a morally upright and legal person with fundamental human
rights before the laws of a nation and a prerequisite to other equal political laws such as rights to
protection against inhuman practices like torture and slavery.75
iv. Ideological, National, and International Roadblocks
The road to attaining fundamental rights to bodily autonomy has a lot of obstacles of
ideological, national or of international status. The issue of marijuana legalization has seen
different legislatures and federal judges express their divergent opinions yielding a hot debate on
personal freedom and personal autonomy regarding health. Several high profile individuals
would act as obstacles because of their opposition and conflicting views on the effects of
legalizing marijuana, and the weight their respective opinions carry tends to significantly
influence other legislatures.76
Another obstacle is associated with national policies and legislation regarding the use of
marijuana and other illegal drugs. For example, the prohibition of marijuana is constitutional
following the 10th Amendment provision on the rights of each state. According to the
amendment, any authority that is bestowed to the national government can be implemented by
the states.77 Since marijuana is not mentioned anywhere in the American Constitution, the
respective American states are in a position to decide what happens to marijuana in their states.
The Congress can equally draft various legislations to give authority to the federal government to
deal with the marijuana case as they wish without constitutional restrictions. Moreover, the
continued effort from the federal government to keep marijuana a schedule I drug is another
75
Gumbis, Jaunius, Vytaute Bacianskait, & Jurgita Randakeviciute. Do Human Rights Guarantee Autonomy?
(2009).
76
Bomboy, Scott. Interest picks up in legal marijuana as constitutional issue [Blog] (2015).
77
Carcieri, Martin D. Obama, the Fourteenth Amendment, and the Drug War. 44 Akron Law Journals (2015).
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national obstacle to marijuana legislation.78 In a view of the U.S. government regulations,
schedule I drugs should not be prescribed and should not be availed for use in clinics.
On an international platform, international bodies such as the European Union (E.U.) have strict
drug policies that definitely will be obstacles in the legalization of marijuana. The E.U. puts
severe measures on those drugs that appear harmful to people and has taken swift actions to burn
them.79 The substances that appear unhealthy are continually prohibited in the E.U. market
segments. With the increasing globalization, it will impossible to navigate through the forces
mounted by multinational anti-drug campaigns in the present-day global society. The world at
large has continually remained adamant in campaigns against drug trafficking leading to
increased trans-border crackdown of drug barons. Thus, the increasing legislation of drugs
classified as hard drugs on a global scale presents a significant challenge to drug legalization
efforts.
IV. CONCLUSION
All things considered, the principle of bodily autonomy explored in this chapter asserts
that individuals have an inherent right to do as they wish with their own bodies. It is observed
that the government may not intervene in actions of a person unless the lives of other people are
at risk. This principle explains why we reject acts such as slavery and rape which tend to involve
other people dictating how one may use their bodies. As such, the bodily autonomy precedent
tends to be limited by legislation geared toward fostering human rights. This is implied by the
case laws employed throughout this chapter whereby most of them underscore the need to
protect individuals from the acts of others. The Federal Law prohibition of bodily autonomous
78
79
Anderson, Sarah L. The List of Schedule 1 Drugs (2018).
The European Union. EU's response to drugs - Migration and Home Affairs - European Commission (2019).
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actions such as the use of drugs is explored as a key intervention to reduce the risk factor
associated with bodily autonomy. However, as explored above, the war on drugs has failed to
curtail drug abuse and has produced more societal harm in the form of mass incarceration, social
stigma, and reduced access to healthcare than it has evaded. The basis of the principle of bodily
autonomy is that allowing anyone but oneself to have sovereignty over one’s body has the
tendency of giving rise to domination and coercion by allowing violence and inherently limiting
the ability of people to pursue their own individual goals.
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30